Section 1: limits on rights

R. v. Oakes (Recap)

"Oakes test" for section 1 of the Charter

*Section 1 indicates rights are not absolute:

rights subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

"It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance"

* standard of proof under s.1 is civil standard, balance of probabilities, hence "reasonable" and "demonstrable" (NOT "beyond reasonable doubt")

* to show that a legal limit is reasonable and demonstrably justified: 2 criteria

1) objective of limit must be significant

("pressing and substantial in a free and democratic society")

2) means chosen to achieve objective must also be reasonable and demonstrably justified:

"Proportional" -- proportionality test

This part of test has three sub-parts:

a) measures must be carefully designed to achieve the intended objective.

* "Rational connection" between objective and means/measures chosen

b) means/measures should impair "as little as possible" the affected right

* "minimal impairment" of right

c) means/measures should have an effect that is proportionate to the objective

* parties affected by the law should not be disproportionately disadvantaged

Apply this test to the Narcotics Act s.8:

* important objective?

Yes: stop trafficking

* rational connection?

No: reverse onus permits conviction of people who were not trafficking.

*Once one part of the test is failed, the analysis does not need to go further: the law is unconstitutional

* But try going on: minimal impairment?

no, since there are other ways of catching or identifying traffickers

proportionate effect?

no, since conviction of the innocent is too high a price to pay for realizing the admittedly significant objective

Freedom of Expression

Irwin Toy v. Attorney General of Quebec

Facts: Quebec law prohibits advertising aimed at children; Irwin Toy advertised in ways that contravened the law.

Question: does a restriction on advertising contravene the Charter protection of free expression?

Problem 1: is advertising really a form of expression at all?

Not everything that human beings do has expressive content, but many things other than speech do have such content

Contrast: Parking your car v. Parking your car as protest

"... if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee."

(But activity must not be violent)

Conclusion: advertising clearly does have expressive content, and so is protected

Problem 2: did government of Quebec seek to restrict content of expression, or just its form?

(form, OK; content, not OK, constitutionally)

The political pamphlet problem

* wrong way: no political pamphlets, because we must avoid littering

*right way: no littering

Quebec law clearly restricts content.

THEREFORE: Quebec law violates Charter; but, can it be saved under section 1?

Oakes test:

1) significant objective?

Yes:protect children from manipulation by commercial interests.

2)Proportionality

a) rational connection?

Yes: banning commercials aimed at children certainly protects children from manipulation

b) minimal impairment?

Yes: companies are still free to advertise to adults and to use "educational" advertising

c) proportionate effects?

Yes: because companies are free to advertise to adults, there is inconvenience (new plans needed) but no real negative effect

Conclusion: Law passes Oakes test